InkedFur’s Furry Friday: Hewwo Copywighted Wowks! Who Owns Your Commission, Part 2

Hello my fuzzy little horde of anthropomorphic intellectual property infringements! It’s time once again for another Inkedfur.com Furry Friday here on Lawyers & Liquor, where I pop open the gates and let the technicolor zoo roam the streets with wild abandon. This time, in a continuation from our discussion of copyright and your totally original and not at all Disney derivative original character, we’re going to go totally vore and get into the meat of the matter. That’s right, this time we’re going to discuss who, in all actuality, owns that commission  you just paid someone to draw of a giraffe named Gerald seductively eating an ice pop or something.

Look, I don’t know what you fuzzy little assholes pay people to draw. That’s between you and whatever god you’re currently making cry.

So last time we covered a lot of the basic of what a copyright is, how you register one, etc. etc. etc. You know, all that advice that you guys are totally not going to listen to because, goddammit, you definitely have better things to do with your time and money then protect your art and fixed tangible ideas. This time we’re going to talk about something a lot more personal: what if the only fucking reason the art exists at all is you paid your hard-earned money to get someone to draw it for you?

Well. That’s a horse of a different art style, now isn’t it?

Someone said I don’t own my character.

What is ownership anyhow, Craig the Copyright Civet? Can a person own the trees? Can a person own the air? Can a person own the babbling brook flowing majestically through the landscape? Can a person truly own anything?

Wait? What’s that? I’ve been informed someone can, indeed, own all of those things, and that I should have actually read the cases in my Property Law class. My deepest apologies to my professor, though I would still like to remind him that, with the exception of Senator McConnell, turtles still aren’t people. And he barely qualifies.

So yeah, more to the point, do you own your character is a bit of tricky question because, as we discussed last time, you can’t copyright an idea. Seriously. I even wrote a little song and everything about it. We should all sing it together now, to the tune of “Happy Birthday:”

YOU CAN’T COPYRIGHT AN IDEA!/YOU CAN’T COPYRIGHT AN IDEA!/GET THE FUCK OUT OF MY OFFICE/CAUSE YOU CAN’T COPYRIGHT AN IDEA!

Copyright applies only to tangible, fixed forms of media. If your character has never appeared in any tangible fixed form of media, there is quite literally nothing for you to own. Just because you’ve thought out the design and personality of your character in excruciating detail does not mean that you have any protectable property interest in them.

But I DID Get Marty the Marmoset In Fixed Tangible Form!

Ah, but who fucking drew the marmoset?

That Would be Craig, the Copyright Civet.

So most likely Craig owns Marty and everything that has to do with him at this point.

But I fucking paid for it.

Nobody fucking cares.

Here’s the basics of copyright and commissions, okay:

The default rule with the copyright is it’s fixed in the person who actually creates the tangible and unique form of expression. This means that the person who actually puts pen to paper and draws the fucking thing has the copyright in it. In other words, generally, copyright will always go to the artist. That’s the default, and for the independent artist who takes work on commission basis, that’s the important thing to realize.

In general, it doesn’t matter who conceived of the character or paid for the work, the copyright to the work will almost always go to the artist not the client.

Well, at least it’s just in that one picture.

Yeah, that one picture and literally any other usage of Marty the Marmoset from here on out.

…Come again?

What do you think this is, FurryMUCK?

No, no, seriously, I get what you’re asking, and yeah, Craig now quite literally owns your ass.

Most character commissions are artistic representations of the character, right? Okay. So, you take the artistic representation of the character, you hire an artist, they now draw the artistic representation of the character. They now have a copyright in the drawing they just made, because like a dumbass nobody agreed otherwise. So you think “Well, that sort of sucks, but at least it’s just that drawing.” However, if they’re the first person to fix that character in media, guess what they actually own?

Not just the rights to that particular drawing, but arguably the rights to the character in all forms unless the representation is changed enough to make it a derivative work instead of a mere copying of the original. But rest assured, the representation of that character in any form substantially similar to the one fixed by the artist is now the artist’s fucking property.

BUT I FUCKING PAID HIM.

Doesn’t matter. The person paying does not matter. Here’s what matters:

Were they your employee and not an independent contractor?

And no, someone is not a fucking employee just because  you paid them. “Employee” is a legal designation that has a lot of factors, but the general rule is if they don’t work for you regularly in a typical employment environment, they’re probably not an employee. They’re likely an independent contractor. And this is a huge fucking difference because, while independent contractors own all of the intellectual property rights in their work, employees don’t.

An employee is subject to work-for-hire by default, meaning unless agreed otherwise any intellectual property rights they may obtain as a result of their work belong to the employer. Not the artist.

How many of you keep a goddamn commission artist on your regular payroll?

Okay. They own that representation of my character, and substantially similar ones…and maybe my character period now, because they attached the name to the commission…so…why is this a big deal? It’s not like they’ll sue me for using it.

Two things:

  1. Have you fucking LOOKED at Twitter? Goddammit, sometimes I feel like you assholes will threaten to sue each other over the day of the week. Don’t forget I ended up here because one person sent another person a cease and desist letter over a fucking drawing of someone getting punched or some shit, okay?
  2. So you’re fine with that totally private NSFW commission you bought off someone with your totally recognizable character and the name you use being mass produced and sold everywhere? Cause that shit can happen and the artist would have the full fucking right to do so, even if you disagree. Because, once again, the artist owns your ass (in this case, rather literally).

FUCKING CRAIG.

I feel you, Marty the Recently Acquired Marmoset. I feel you.

You just can’t fucking trust civets.

We, with the accumulated filth of all our yiff and awooing foaming up about our waists, being the foxes and sergals, look up and shout “Save us!”

*whispers* No.

Because I can’t save you. What’s done is done, guys. But, much like that STD you picked up from a cute raccoon in Chicago or Pittsburgh, this shit is preventable.

See, what lacks from a lot of commission agreements is any semblance of formality. I get that it may not be something people exactly like, especially when issues may not ever arise, but it does fucking help. With a little bit of formality you can set the whole “who owns my character” thing to bed with a simple, one-paragraph clause in an even simpler one page agreement that says something like:

All ownership rights in and resulting from the Artwork and/or character(s) depicted therein, including but not limited to copyright, patent, trademark, or other property rights shall transfer to the Commissioner upon final payment of the Total Price. Commissioner, upon receipt of the Artwork, hereby grants to the Artist a nonexclusive, irrevocable license for the use of the Artwork for use in advertising of the Artist’s business or to be placed displayed in the Artist’s gallery or other exhibitions, but which does not include the reproduction and sale of the Artwork in any physical form unless otherwise agreed to.

Note: please don’t fucking copy this verbatim and place it in a contract. I’m not an IP lawyer, and there’s probably much better worded shit out there. But the intent of this paragraph is clear: it grants the person paying for the artwork all intellectual property rights in the artwork and the character, while allowing the artist (who has already been paid) a license for advertising or display purposes but not for the reproduction and sale of the same artwork.

Or future use of the character.

Which, methinks, is probably more important to you guys.

…Why does it keep coming back to contracts with you?

Because Contracts, Marty, are fucking important to me. I’m a lawyer. They mean things.

Nobody uses contracts.

And I think you’re all a wee bit stupid for not doing that, especially if you’re a creator who makes a significant portion of your income from this shit. But that’s one badger’s opinion, isn’t it?

Fuck you, Boozy.

Fuck you too, Marty.

Conclusion

Look, everyone’s one big happy family until they aren’t. An artist may never use your character or the artwork they created for you in media. Maybe, however, the ability to use that artwork is what keeps commission prices down for some artists. I’m not an artistic supply-side economist. I’m just a fucking lawyer. What I do know is the current system doesn’t provide a lot of protection for the person who shells out the money for the artwork of a character that’s generally near and dear to them, and a lot of people aren’t fucking aware of this.

So I wrote a thing.

And that’s that.

Visit InkedFur.com

InkedFur.com has been sponsoring these posts for a bit now, so I always like to give them an “end of post” shout-out. So, if you like this stuff, go take a look at their stuff – art prints, pillows, all that awesome shit.

Till next month,

-BB(adger)

 

Author: BoozyBarrister

From a riverboat to a law office, the BoozyBarrister is a civil litigator with a bad attitude.